[Federal Register Volume 59, Number 69 (Monday, April 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8483]


[[Page Unknown]]

[Federal Register: April 11, 1994]


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Part IV





Department of Transportation





_______________________________________________________________________



Federal Aviation Administration



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14 CFR Part 121




Protective Breathing Equipment; Supplemental Notice of Proposed 
Rulemaking
DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No. 27219; Notice No. 94-7]
RIN 2120-AD74

 
Protective Breathing Equipment

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: This supplemental document announces that the FAA will broaden 
its consideration of one issue in its notice of proposed rulemaking 
(NPRM) issued March 19, 1993, to revise the Federal Aviation 
Regulations (FAR) governing portable protective breathing equipment 
(PBE) required for use in combatting inflight fires in cargo-only 
aircraft. In response to comments to the NPRM, the FAA will consider a 
proposal by some commenters to eliminate, for cargo-only operations, 
the one portable PBE unit proposed in the NPRM for placement in a 
position that is easily accessible and conveniently located for use in 
the cargo area of the airplane. The FAA will consider whether the other 
portable PBE unit, which is currently required for the flight deck, is 
sufficient for use both on the flight deck and in the cargo area. With 
this supplemental document, the FAA expands the scope of the NPRM to 
include consideration of a different requirement than proposed in the 
NPRM.

DATES: Comments must be received on or before May 11, 1994.

ADDRESSES: Comments on this SNPRM may be delivered or mailed in 
triplicate to: Federal Aviation Administration, Office of the Chief 
Counsel, Attention: Rules Docket (AGC-10), Docket No. 800 Independence 
Avenue, SW., Washington, DC 20591. All comments must be marked ``Docket 
No. 27219.'' Comments may be examined in the Rules Docket, Room 915G, 
weekdays between 8:30 a.m. and 5 p.m., except on Federal holidays.

FOR FURTHER INFORMATION CONTACT:
Gary Davis, Project Development Branch, AFS-240, Air Transportation 
Division, Flight Standards Service, Federal Aviation Administration, 
800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 
267-8096.

SUPPLEMENTARY INFORMATION: 

Comments Invited

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments as they may desire. 
Comments relating to the potential economic, environmental, energy, or 
federalism impact of the proposals contained in this notice are also 
invited.
    The comments should identify the regulatory docket or notice number 
and should be submitted in triplicate to the Rules Docket address 
specified above. All comments received on or before the closing date 
for comments will be considered by the Administrator before action is 
taken on the proposed amendments, and the proposals contained in this 
notice may be changed in light of comments received. All comments 
received, as well as a report summarizing any substantive public 
contact with FAA personnel on this rulemaking, will be filed in the 
docket. The docket is available for public inspection both before and 
after the closing date for submitting comments. The FAA will 
acknowledge receipt of a comment if the commenter submits with the 
comment a self-addressed, stamped postcard on which the following 
statement is made: ``Comments to Docket No. 27219.'' When the comment 
is received, the postcard will be dated, time stamped, and returned to 
the commenter.

Availability of the SNPRM

    Any person may obtain a copy of this SNPRM by submitting a request 
to the Federal Aviation Administration, Office of Public Affairs, 
Attention: Public Inquiry Center, APA-430, 800 Independence Avenue, 
SW., Washington, DC 20591, or by calling (202) 267-3484. Requests 
should identify Docket No. 27219 of this proposed rule. Persons 
interested in being placed on a mailing list for future proposed rules 
should also request a copy of Advisory Circular No. 11-2A, Notice of 
Proposed Rulemaking Distribution System, which describes the 
application procedure.

Background

    The PBE requirements that specifically apply to part 121 
certificate holders are found in Sec. 121.337 of the FAR (14 CFR 
Sec. 121.337). The current form of this regulation was established by 
FAR Amendment No. 121-193 (52 FR 20956; June 3, 1987), which became 
effective on July 6, 1987, and FAR Amendment No. 121-212 (55 FR 5551; 
February 15, 1990).
    The PBE required by Sec. 121.337 fall into two categories. The 
first such category consists of PBE for use by flight crewmembers 
(i.e., pilots, flight engineers, and flight navigators) at their 
assigned duty stations on the flight deck. See Sec. 121.337(b)(8). 
These units may be either fixed or portable; the important thing is 
that they be easily accessible for immediate use by the flight 
crewmembers at their duty stations. This type of PBE must be approved 
to meet the standards in Technical Standards Order (TSO) C-99 or TSO C-
116 as appropriate.
    The second category of required PBE, the subject of this SNPRM, 
consists of portable PBE units that are intended for use by all 
crewmembers (i.e., not just pilots, flight engineers, and flight 
navigators, but flight attendants also) when they investigate and 
combat fires throughout the aircraft. See Sec. 121.337(b)(9). This type 
of PBE must be approved to meet the standards in TSO C-116 and is 
identified as ``portable PBE.''
    Section 121.337(b)(9)(i) requires that one PBE unit with a portable 
breathing gas supply be easily accessible and conveniently located for 
immediate use in each Class A, B, and E cargo compartment that is 
accessible to crewmembers in the compartment during flight. (For 
definitions of the various classes of cargo compartments, see 14 CFR 
25.857).
    Under Sec. 121.337(b)(9)(i), a separate PBE unit is required for 
each Class A, B, and E cargo compartment; thus, if there are a total of 
seven such compartments, then seven portable PBE units would be 
required under the current provision.
    On behalf of six member airlines operating cargo-only aircraft, the 
Air Transport Association (ATA) petitioned the FAA on August 14, 1989, 
for a permanent exemption from Sec. 121.337(b)(9)(i). In its petition, 
ATA argued that the current requirement to install a portable PBE unit 
for each Class E cargo compartment should be eliminated. (A Class E 
cargo compartment is one on airplanes used only for the carriage of 
cargo. See Sec. 25.857(e), containing this and further requirements for 
a compartment to be classified as a Class E cargo compartment.)
    In support of its petition, ATA argued that Class E cargo 
compartments are generally inaccessible in flight and that established 
crewmember procedures are to land the aircraft as soon as possible and 
to combat a fire in the compartment only as a last resort. According to 
ATA, the portable PBE unit on the flight deck, as required by 
Sec. 121.337(b)(9)(iii), would suffice in the unlikely event that a 
crewmember would have to combat an in-flight fire.
    The FFA agreed with ATA that the PBE requirements for cargo-only 
airplanes deserved further consideration through the rulemaking 
process. The agency therefore extended the compliance date for 
certificate holders operating cargo-only airplanes to install portable 
PBE units for use in Class A, B, or E cargo compartments from January 
31, 1990, to February 18, 1992,\1\ and invited interested persons to 
submit comments on this subject to Docket No. 24792. See FAR Amendment 
No. 121-212 (55 FR 5548; February 15, 1990), which became effective on 
February 15, 1990.
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    \1\Exemption No. 5407, issued to Air Transport Association on 
February 18, 1992, further extended the date of compliance for 
cargo-only carriers until February 18, 1993. Exemption No. 5407A 
extended the date of compliance until February 18, 1994.
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    Airborne Express and Mid-Pacific Air Corporation responded to the 
request for public comment set forth in FAR Amendment No. 121-212. Each 
of the commenters took the position that the portable PBE unit already 
required on the fight deck by Sec. 121.337(b)(9)(iii) was adequate for 
investigating and combatting fires in Class E cargo compartments.
    Consequently, the FAA published Notice No. 93-2 in which the agency 
proposed to eliminate the multiple units required by 
Sec. 121.337(b)(9)(i) and proposed instead to require that one portable 
PBE unit be located in a position that is easily accessible and 
conveniently located for use in the cargo area. In its justification, 
the FAA stated that safety requires that, in addition to the portable 
PBE unit required on the flight deck, another portable PBE unit be 
available for use in the cargo area for the possibility of having to 
fight an in-flight fire.
    Six comments were received on the NPRM. In addition, ATA submitted 
comments from both cargo-only and passenger carrying operators.
    ATA commented that the proposed rule contradicted the rationale 
accepted by the FAA in granting the exemption. ATA believes that 
requiring two portable PBE units, one on the flight deck and one 
additional in the cargo area, is unnecessary and unwarranted based on 
safety considerations, operational and maintenance considerations, and 
costs. ATA also stated that it had reviewed Service Difficulty Report 
data from 1979-1992 and found no reports of fire or smoke in Class E 
compartments. Attached were comments from Airborne Express, DHL, 
Evergreen, and UPS supporting the ATA position.
    The Air Line Pilots Association (ALPA) commented, however, that PBE 
should be conveniently available to each cargo compartment. ALPA stated 
that the cargo PBE units would serve as a prudent backup to the cockpit 
PBE when its air supply is expended. ALPA also noted that although the 
training is to land the aircraft in case of a fire, this may not always 
be possible.
    Boeing Commercial Airplane Group commented that one PBE located 
with the fire extinguisher on the flight deck is not adequate and 
suggested that a second PBE be stored near the entrance to the cargo 
compartment to increase availability. Boeing, however, provided no data 
to support this statement.
    In consideration of comments received, the FAA is considering 
whether it erred in its original proposal concerning a second portable 
PBE unit. As a factual matter, cargo-only carriers have never been 
required to install this second portable PBE unit since the adoption of 
the rule in 1987 because of subsequent rulemaking actions. The FAA has 
no accident or incident data regarding fires on cargo-only airplanes in 
which a second portable PBE unit could have made a difference. 
Consequently, in view of the absence of this data and in view of the 
existing requirement to have a portable PBE unit on the flight deck, 
the FAA is considering the merits of arguments and analysis that posit 
that the second portable PBE unit is not needed. Therefore, if the FAA 
determines that sufficient safety justification does not exist, then 
operators will not be required to absorb the additional cost of 
installing a second portable PBE unit for the cargo area. In Notice No. 
93-2, the FAA described safety benefits accruing from having two 
portable PBE units for separate purposes, one for the flight deck and 
one for the cargo area. However, the FAA is presently considering the 
experience of operators in order to determine whether safety requires a 
second PBE unit.
    In addition, the FAA is reevaluating its statements concerning the 
scenario of discovering a fire not detected by a smoke detector as 
described in the NPRM. This reevaluation is being made because 
discovering a fire in the cargo area of a cargo-only aircraft may be 
unlikely due to the limited accessibility to cargo compartments in some 
cargo-only aircraft and the complete inaccessibility in others. The FAA 
invites additional comment on the subject of accessibility.
    The FAA acknowledges ALPA's comment that the second portable PBE 
unit would serve as a backup unit. This comment will be weighed with 
arguments that imposing additional requirements without data to show 
safety benefits is not cost effective. Therefore, the FAA is 
considering whether one portable PBE unit currently required for the 
flight deck is sufficient for the possibility that a crewmember on a 
cargo-only airplane would need to fight an in-flight fire anywhere on 
the airplane, including the cargo area. The FAA specifically invites 
comments on any accident or incident data that would persuade it to 
adopt a rule as originally proposed in the NPRM.
    This SNPRM addresses only this one specific issue. Other issues 
discussed in Notice No. 93-2 will be disposed in the final rule.

Economic Summary

    Executive Order 12866 directs each Federal agency to propose or to 
adopt a regulation only on a reasoned determination that its benefits 
justify its costs. The FAA has determined that this is not a 
``significant regulatory action'' as defined in the Executive Order. 
However, the proposed rulemaking is considered significant as defined 
in Department of Transportation (DOT) Policies and Procedures. 
Furthermore, the FAA has determined that the rule would impose no 
additional costs to the public, the aviation industry, or to the FAA. 
Hence, no detailed regulatory evaluation was prepared. The cost relief 
expected from this proposed rulemaking are discussed in the following 
section.

Costs Relief

    In addition to the NPRM proposed rule concerning the number of 
required portable PBE in cargo-only aircraft, the FAA is considering 
rule language to reduce to one, the total number of portable PBE units 
to be required in cargo-only operations. The SNPRM proposed rule would 
eliminate the proposed requirement in Notice No. 93-2 that cargo 
aircraft must have an additional PBE unit that is easily accessible and 
convenient for use in the cargo area. If the FAA adopts the NPRM rule 
language concerning portable PBE on cargo-only aircraft, part 121 
operators of those aircraft must make sure a separate PBE unit is 
installed for use in the cargo area. Thus, if the NPRM proposed rule is 
adopted, two portable PBE units will be required for cargo-only 
aircraft: one on the flight deck and one that is easily accessible and 
convenient for use in the cargo area. Under the SNPRM proposed rule, 
only one portable PBE would be located on the flight deck for use there 
and in the cargo area, if that area is accessible.
    If the NPRM proposed rule is adopted, the FAA estimates that, at a 
minimum, each part 121, all-cargo aircraft would need to add one PBE 
unit in its cargo area. The FAA also estimates that about 450 aircraft 
would fall into the part 121 all-cargo category and that each PBE unit 
would cost approximately $450. If the SNPRM proposed rule is adopted, 
the nondiscounted cost relief in the first year would total $202,500. 
The discounted value equals $189,300.
    The FAA has determined that the proposed rule in this SNPRM would 
be cost beneficial, if adopted. However, the FAA seeks comment on the 
cost estimate and the safety effect of placing additional PBE units on-
board part 121 all-cargo aircraft. Comments should be entered into the 
docket and should provide specific data.

Initial Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) helps to assure that 
Federal regulations do not overly burden small businesses, nonprofit 
organizations, and small cities. The RFA requires regulatory agencies 
to review rules which may have ``a significant economic impact on a 
substantial number of small entities.'' A substantial number of small 
entities, defined by FAA Order 2100.14A--``Regulatory Flexibility 
Criteria and Guidance,'' is not less than eleven and not more than one-
third of the small entities subject to the existing rule. To determine 
if the rule will impose a significant cost impact on these small 
entities, the annualized cost imposed on them must not exceed the 
annualized cost threshold established in FAA Order 2100.14A.
    For the purpose of this SNPRM, the RFA analysis pertains to small 
part 121 all-cargo operators with 9 or fewer aircraft. Because this 
rule is cost relieving, no small entities would bear any greater burden 
due to its provisions. Hence, the proposed rule would not have a 
significant impact on a substantial number of small entities.

International Trade Impact Analysis

    The proposed rule would impose no additional cost burden on either 
domestic or international all-cargo carriers. Hence, the SNPRM would 
not cause any competitive trade advantage or disadvantage to enter the 
U.S. or to any foreign country.

Federalism Implications

    The proposed rule in this SNPRM would not have a substantial direct 
effect on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of Government. Therefore, in 
accordance with Executive Order 12612, it is determined that the 
proposed amendments would not have federalism implications requiring 
the preparation of a Federalism Assessment.

Conclusion

    The FAA has determined that the proposal in this amendment is not a 
significant regulatory action under Executive Order 12866 since it 
would not impose any additional costs. In addition, because this 
proposal could result in a cost savings of about $200,000, to cargo-
only operators and would have no impact on safety, the FAA has 
determined that this action is not significant under Department of 
Transportation (DOT) Regulatory Policies and Procedures [44 FR 11034; 
February 26, 1979].
    The proposed amendments would have no impact on trade opportunities 
for U.S. firms doing business overseas or for foreign firms doing 
business in the United States. In addition, the amendments, if adopted, 
will not have a significant economic impact, positive or negative, on a 
substantial number of small entities under the criteria of the RFA.
    The proposal in this amendment would have no additional economic 
impact on the public. In fact, in the case of cargo-only operators, 
they would relieve costs. The FAA has determined that the expected 
impact of the amendment is so minimal that it does not warrant a full 
Regulatory Evaluation.

List of Subjects in 14 CFR Part 121

    Air carriers, Air safety, Air transportation, Airplanes, Aviation 
safety, Safety, Transportation.

The Proposed Rule

    In addition to the range of possibilities in the NPRM proposal, the 
Federal Aviation Administration is considering an alternative proposal 
to amend part 121 of the Federal Aviation Regulations (14 CFR part 121) 
as follows:

PART 121--CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND 
SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE 
AIRCRAFT

    1. The authority citation for part 121 continues to read as 
follows:

    Authority: 49 U.S.C. 1354(a), 1355, 1356, 1357, 1401, 1421-1430, 
1472, 1485, and 1502; 49 U.S.C. 106(g) (Revised Pub. L. 97-449, 
January 12, 1983).


Sec. 121.337  [Amended]

    2. Section 121.337 is amended by removing paragraph (b) (9) (i); by 
redesignating paragraphs (b) (9) (ii), (b) (9) (iii), and (b) (9) (iv) 
as (b) (9) (i), (b) (9) (ii), and (b) (9) (iii); and by removing, in 
paragraph (d) (1), the words ``, except that for all-cargo airplanes 
subject to the requirements of paragraph (b) (9) (i) of this section 
the compliance date is February 18, 1992''.

    Issued in Washington, DC, on March 31, 1994.
William J. White,
Acting Director, Flight Standards Service.
[FR Doc. 94-8483 Filed 4-8-94; 8:45 am]
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